Brunner v. Stone & Webster Engineering Corp.

• Citation: 603 N.E.2d 206,413 Mass. 698
• Parties: , 60 Fair Empl.Prac.Cas. (BNA) 985 Dianne M. BRUNNER v. STONE & WEBSTER ENGINEERING CORPORATION & another. 1
• Decision Date: 19 November 1992
• Court: United States State Supreme Judicial Court of Massachusetts

Page 206

603 N.E.2d 206

413 Mass. 698, 60 Fair Empl.Prac.Cas. (BNA) 985

Dianne M. BRUNNER v. STONE & WEBSTER ENGINEERING CORPORATION & another.¹

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued March 3, 1992.

Decided Nov. 19, 1992.

Frederick T. Golder, Lynnfield, for plaintiff.

David J. Kerman, Boston, for defendants.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

In a seven-count complaint, the plaintiff alleges in count I that Stone & Webster Engineering Corporation (Stone & Webster) discharged her from employment because of her sex and in retaliation for her having complained of sexual harassment and discrimination in violation of G.L. c. 151B (1990 ed.). In count VII, the plaintiff alleges that the defendant Wiesel intentionally interfered with her contractual relations with Stone & Webster. The defendants moved for summary judgment on all seven counts and that motion was allowed in full. The plaintiff appealed from the grant of summary judgment on counts I, II, III, and VII, and the Appeals Court, in an unpublished memorandum and order reversed the summary judgment on counts I and VII. The Appeals Court affirmed as to counts II and III. 31 Mass.App.Ct. 1113, 579 N.E.2d 1383 (1991). We allowed the defendants' application for further appellate review with respect to counts I (G.L. c. 151B against Stone & Webster) and VII (interference with contract against Wiesel). We hold that the Superior Court properly granted summary judgment to the defendants on counts I and VII. We affirm the judgment of the Superior Court.

General Laws c. 151B, § 4 (1990 ed.), provides in pertinent part: "It shall be an unlawful practice: 1. For an employer ... because of the ... sex ... of any individual ... to discharge from employment such individual ... unless based upon a bona fide occupational qualification." In a c. 151B case involving an assertion of sexual discrimination in employment, the plaintiff has the burden of persuading the fact finder that the employer intentionally discriminated against him or her on account of sex, and that, but for the discrimination, the employer would not have taken the complained-of action. McKenzie v. Brigham & Women's Hosp., 405 Mass. 432, 434, 541 N.E.2d 325 (1989). Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765, 493 N.E.2d 867 (1986). See Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 227 n. 8, 380 N.E.2d 121 (1978); Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 139, 355 N.E.2d 309 (1976). The plaintiff may meet his or her burden of proof "by establishing an unanswered prima facie case of discrimination." McKenzie v. Brigham & Women's Hosp., supra 405 Mass. at 434, 541 N.E.2d 325, quoting Wheelock College v. Massachusetts Comm'n Against Discrimination, supra 371 Mass. at 139, 355 N.E.2d 309. A plaintiff would clearly establish a prima facie case, for example, by showing that she is a woman whom the employer discharged despite her qualifications, and that the employer thereafter filled that position, or attempted to fill it, with a man with similar qualifications. "If a plaintiff establishes a prima facie case, but the defendant [employer] answers it by advancing lawful grounds for the action taken and produces evidence of underlying facts in support thereof, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant's asserted reasons were not the real reasons for the action. Smith College, supra [376 Mass.] at 229-230 Wheelock College, supra [371 Mass.] at 139 ." McKenzie, supra 405 Mass. at 435, 541 N.E.2d 325.

In support of their motion for summary judgment, the defendants submitted portions of the deposition testimony of the plaintiff and of Robert Doneski, supervisor of Stone & Webster's graphic arts group to which the plaintiff was assigned. The defendants also submitted an affidavit of the defendant Wiesel, chief engineer of Stone & Webster's structural division, to whom Doneski reported. In addition, the record contains the plaintiff's answers to interrogatories that had been propounded by a third defendant, a coworker who is no longer a party to this case. The uncontradicted portions of those materials present the facts we set forth below.

The plaintiff was first employed by Stone & Webster in 1970 as a drafter. She received several promotions and had been a senior graphic designer in the graphic arts group for six years when her employment was terminated in July, 1988. She was supervised by several tiers of management. The defendant Wiesel, as the chief engineer of Stone & Webster's structural division, was one of the plaintiff's supervisors. From mid-1985 until the plaintiff's layoff, the plaintiff was also supervised by Robert Doneski, who was the supervisor of the graphic arts group. Doneski reported to Wiesel. Mario Rubio-Ospina was the lead senior graphic designer and was in charge of assigning and receiving the plaintiff's work.

In 1974, the plaintiff was denied a promotion and was told that it was because she did not have children and a mortgage to support. The plaintiff pursued the issue and was promoted. Once, the plaintiff and a female coworker overheard two male employees discussing a pornographic movie. When that incident was reported, Stone & Webster addressed the situation through a supervisor. In 1973 and again in 1986, male coworkers made vulgar sexually-oriented statements to the plaintiff. Rubio-Ospina assigned menial work to the plaintiff and did so in a confusing and demeaning manner. In 1988, Rubio-Ospina attempted to persuade the plaintiff to alter her time cards and, when she refused, he stated loudly that she was "not a real help" to the group. On that same day, Rubio-Ospina threw a hard-boiled egg at the plaintiff and held up her work and asked, "which cow did this job." In June, 1983, someone put razor blades in and on the plaintiff's desk, and in September, 1983, her wedding picture was missing from her desk and was later found in her locked desk drawer. The plaintiff reported some of these incidents to Stone & Webster's management personnel, who responded in a manner designed to be corrective.

The plaintiff lacked training on certain automated equipment. Three men and two women in the graphic arts group, not including the plaintiff, were trained on the Autographix machine. Some of the graphic arts group personnel, but not the plaintiff, were trained in the use of the Oxbery and computer graphics machines, which training the plaintiff declined to pursue.

During the 1980's, the graphic arts group of Stone & Webster suffered a significant decline in its workload. Also, during that period, the group increased its use of automated equipment. As a result, the workforce of the graphic arts group was reduced. The company laid off six employees in 1984, two in 1986, and three in 1987. As the workload continued to decline in 1988, Stone & Webster laid off three more graphic designers in July, 1988. They were the plaintiff, another woman, and a man. Five men and two women were retained. Of the seven graphic designers retained, two, a man and a woman, had more seniority than the plaintiff. Of the remaining five, four were men and one was a woman. They had less seniority than the plaintiff. Of these five employees with less seniority than the plaintiff, three of the men and one woman had received specialized training in automated equipment. One man, F.M. Van Wart, had not. The three individuals who were laid off had not received specialized training.

Supervisor Doneski testified in a deposition that the plaintiff had never been rated less than "effective" in her formal performance evaluations, that there was nothing wrong with the quality of her work, and that other company personnel from time to time had commended the plaintiff's work. He also testified that, while at one time he had felt that the plaintiff's productivity was high, it had subsequently slipped, and that the plaintiff's initiative was "average."

Wiesel and Doneski met and discussed who would be laid off. They appraised the capability, technical expertise, job knowledge, initiative, versatility, productivity, and potential contributions of each graphics group member. They decided to retain all the group members who had specialized training in automated equipment. They also decided to retain Van Wart following their discussion of Van Wart's "high capability and excellent work." They laid off all the others.

On appeal, Stone & Webster says that it laid off its employees because of a shortage of work, and selected the plaintiff for layoff because she lacked the training of, or was a less capable performer than, those individuals with less seniority that were retained. The plaintiff argues that Stone & Webster's claim is a mere pretext, and that the reasons she was laid off were that she was a woman and she had complained of sexual harassment and discrimination on the job.

Ordinarily, as we have suggested early in this opinion, the first question would be whether the plaintiff has...